mental impression privilege
“Mental Impression” Privilege
Summary: There is a distinction between material which does not reveal any of the attorney's mental processes ("ordinary work product"') and material which reveals the opinions, conclusion, and mental impressions of the attorney ("opinion work product"'). Recorded witness statements are an example of ordinary work product; an attorney's notes of an oral interview or a memorandum analyzing the situation are examples of opinion work product. Courts applying the work product doctrine accord opinion work product greater protection from disclosure.
In 1947, Hickman v. Taylor was decided by the Supreme Court. In that decision, the Court held that when defendant interviewed witnesses, written versions of oral statements were protected. The Court arguably created three categories of protection: (1) limited protection for formal, written statements gathered by a lawyer for a party; (2) a somewhat vague, but perhaps enhanced protection for the lawyer's notes or memoranda of interviews with witnesses when no formal statement was taken; and (3) absolute, or almost absolute, protection for the lawyer's mental impressions.
Difficulties applying the Hickman rule ensued, and so in 1970 the Federal Advisory Committee adopted Federal Rules of Civil Procedure 26(b)(3):
Subject to the provisions of subdivision (b)(4) of this rule [concerning expert witnesses], a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The 1970 Advisory Committee Notes point out that FRCP 26(b)(3) imposes a requirement of a "special showing" that the party seeking discovery of work product materials has substantial need of the materials in the preparation of the party's case and that the party is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. The Notes suggest several examples of sufficient demonstrations that might meet this threshold requirement, including statements taken from a witness shortly after the event under litigation, when the requesting party did not have an equal opportunity; that the witness is hostile to the requesting party, or, perhaps reluctant; or that the witness has had an intervening lapse of memory. The Notes then turn, under the heading "Treatment of Lawyers; Special Protection of Mental Impressions, Conclusions, Opinions, and Legal Theories Concerning the Litigation," to what is sometimes referred to as core work product. The Notes recognize that the text of FRCP 26(b)(3) is intended to protect the lawyer's "mental impressions, conclusions, opinions, or legal theories," but in the midst of the discussion, the Notes interject this statement: "The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews." The Notes do not attempt to tie this statement to the Rule's text.
The basic rationale of the work product doctrine is that it is unfair to permit the adverse party to feed on the industriousness or the wits of the party from whom discovery is sought. This rationale focuses on the interaction between the parties. The rationale protecting memoranda prepared from a recollection of oral interviews, when examined minutely, breaks into two components, both related to broader interests than the relations between adversaries. One component relates to the legal profession as an institution while the other relates to the reliability of the evidence. Neither of these components relates, except in a most oblique way, to unfairness, or to feeding on the wits of the adversary.
Dividing the rationales supporting the work product doctrine in this way is only an intermediate step. The question of what measure of protection is given to memoranda of oral interviews remains. The text of the rule is so vague on this question that one must look elsewhere for the answer. It may be that the Advisory Committee Notes, by the insertion of the cryptic sentence concerning memoranda of oral interviews in the midst of the discussion of near-absolute protection for the lawyer's mental impressions, intended to sweep memoranda of oral interviews into the same category as the lawyer's mental impressions, thus affording the memoranda the same maximum protection, even though disparate rationales apply.
The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators and claim-agents. In enforcing this provision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.
Although absolute protection for interview memoranda is questionable, there are cases which emphasize that Rule 26(b)(3) protects interview memoranda whenever possible. This treatment is warranted by "several unique and well-documented problems." First, [interview memoranda] may indirectly reveal the attorney's mental processes, his opinion work product. Second, their reliability as accurate reflections of the witness's statements is a function of many factors, including the conditions of the interview, the contemporaneousness of the writing, and the editorial discretion of the attorney. Third, discovery and use of such material creates a danger of converting the attorney from advocate to witness. Finally, the information contained in such memoranda generally is of limited utility, especially where the witness himself is readily available to the opposing party. Thus, although these materials lie in the gray zone between ordinary and opinion work product, courts should continue to classify interview memoranda as opinion work product, granting such material special protection.
In Upjohn Co. v. United States, 449 U.S. 383, 400 (1981), the Court indicated that memoranda revealing attorney's mental processes and based on oral statements by witnesses are specially protected by FRCP 26(b)(3). The Court declined to decide the question as it related to memoranda and mental impressions of an attorney prepared in conjunction with his oral interviews with witnesses. However, the Court said that it was clear that, “such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.” The Court continued, “we think a far stronger showing of necessity and unavailability by other means than [substantial need and without undue hardship] would be necessary to compel disclosure.”
 However, the Court also said: “We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. … But the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. … When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries.”
 For example, in Guilford Nat'l Bank v Southern Ry., 297 F2d 921 (4th Cir 1962), statements of witnesses obtained by claim agents were held not discoverable because both parties had had equal access to the witnesses at about the same time, shortly after the collision in question. … The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators and claim-agents. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.
 Lewis H. Orland, Observations On The Work Product Rule, 29 Gonz. L. Rev. 281 (1994).
 Sherman L. Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Geo. L.J. 917 (1983). Also see Xerox Corp v. IBM Corp, 64 F.R.D. 367 (S.D.N.Y. 1974), where the court ordered production of notes taken by in-house counsel during an interview of defendant's employees before litigation commenced because the employees could not recall crucial information at their deposition. The court stated that it would remove attorney mental impressions as much as possible, but if it proved impossible to do so, the entire document would have to be produced, in order to avoid one party having sole control over discoverable information. John E. Tyler, III, Supreme Court Of Missouri Protects Intangible Work Product, 52 J. Mo. B. 172 (1996).
 See, e.g., In re Murphy, 560 F.2d 326, 334 (8th Cir.1977) ("The rule establishes a qualified immunity for ordinary work product--that which does not contain the mental impressions, conclusions or opinions of the attorney. . . . Rule 26(b)(3) provides special protection for an attorney's opinion work product."); United States v. Bonnell, 483 F.Supp. 1070, 1078 (D.Minn. 1979) (noting that Hickman implicitly created
classifications of "ordinary" and "opinion" work product and implying that rule 26(b)(3) maintains distinction); see also Note, Discovering Investigative Reports Under the Work Product Doctrine, 34 BAYLOR L. REV. 156, 158-59 (1982) (differentiating between "core" work product, consisting of "evaluative materials prepared by an attorney or his agent," and "shell" work product, including "all other documents and tangible things prepared in anticipation of litigation not encompassed within the 'core' work product category") (footnote omitted) [hereinafter cited as Note, Discovering Investigative Reports]; Note, Protection of Opinion Work Product Under the Federal Rules of Civil Procedure, 64 VA.L.REV. 333, 333 (1978) (describing opinion work product as "core" of work product)
 In re Grand Jury Investigation (Sturgis), 412 F.Supp. 943, 949 (E.D. Pa. 1976), the court indicated that notes of conversations with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure".
 In re Grand Jury Investigation (Sun), 599 F.2d 1224, 1231 (3d Cir.1979).
 Jeff A. Anderson, The Work Product Doctrine, 68 CNLLR 760, at fn. 351, (1983).